' TANZIL-UL-REHMAN, C.J.---The learned Sessions Judge, Loralai, Camp at Quetta, convicted the appellant Haji Abdul Qayyum, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and sentenced to fifteen years' R.I. And twenty stripes with fine of Rs, one lac and in default to undergo S.I., for two years for the recovery of 1018 K.G. Of opium.
2. The above appeal was preferred in this Court by the appellant/convict on 14-4-1988, which was admitted to regular hearing and he was bailed out by a learned Single Judge of this Court on 17-4- 1988 subject to his furnishing security in the sum of Rs,50,000 with two sureties in the like amount each to the satisfaction of Sessions Judge, Quetta.
3. On 12-12-1988 when the appeal came up for regular hearing the appellant was absent though his counsel was present. One of the two sureties namely Abdul Baseer submitted an application that the appellant Haji Abdul Qayyum has died as informed by "Hezb-e-Islami Afghanistan" and "Madrassa Arabia Darul Aloom Chagai Pidgi Balochistan". He also filed letters conveying the said information. The learned Advocate-General, took time to check up the factual position and inform this Court before any order is passed on the said application.
4. On 2-4-1989 when the matter again came up for hearing before this Court a report dated 22nd January 1989, of the Political Agent Chagai was laid before this Court stating that the appellant Haji Abdul Qayyum was very much alive and looking after his narcotics smuggling business from his base camp close to the border. Abdul Baseer one of the sureties submitted that he was not given any opportunity to make representation before the Political Agent. The learned Advocate-General agreed that the surety may be allowed to appear before the Political Agent and produce such evidence that he might like to do. It was thus directed that the appellant's counsel and the sureties shall appear before the Political Agent on 9-4-1989 with a copy of the order of this Court.
5. The matter was then taken up on 20th May 1990 and on the said date neither the appellant nor his counsel appeared. The surety Abdul Baseer was also absent. One Abdul Salam said to be brother of Abdul Baseer however requested for short adjournment and undertook to cause attendance of his brother Abdul Baseer on 24-4-1990. The case was then adjourned for hearing of the Appeal on 24-5-1990. The appellant and his counsel again remained absent. However Sardar Salcem Durrani, Advodcate for Abdul Baseer surety appeared. The second surety Khuda-e-Nazar was also absent. The Court passed the following order:-- "Appellant is said to have died after his release on bail. State, however, disputes his death. The attendance of sureties has not been procured. There shall be issued non-bailable warrants of arrest as against the appellant and the State Agency should make efforts to cause the service of the process and to arrest and produce him in person on the next date of hearing. There shall be issued a notice to the sureties to furnish cogent evidence on the next date of hearing about the alleged death of the appellant as claimed by them. Case is adjourned."
6. On 30th April, 1991 the appellant was again absent. Counsel for surety Abdul Baseer was present and the other surety Khuda-e-Nazar was also present. No evidence was produced by the sureties about the alleged death of the appellant as stated by them. The case was adjourned on 2nd May, 1991, to show cause as to why surety bonds be not forfeited under section 514, Cr.P.C.
7. The sureties have failed to furnish proof of death of the appellant in spite of sufficient time given to them. Merely filing some letters about death of the appellant does not meet the requirements of law. The said letters without producing their authors are not admissible in law. We, therefore, attach no value to the said letters, and moreso when the factum of death is disputed by the State. In the circumstances, onus of proof of death of the appellant rests on the sureties which they have failed to discharge.
8. It is submitted on behalf of the sureties that they had executed surety bonds simply on humanitarian ground and for no monetary benefit to them and, therefore, the full amount of bonds may not be forfeited. This Court has been noticing in innumerable narcotics cases that the accused, after they are released on bail, during the trial of the case or at the appellate stage after conviction, disappear invariably, with the result that the cases are consigned to record and the accused/convict go unpunished. Narcotics-trafficking is going on in this country since about a decade as an organized trade. When the accused are arrested and bailed out, they arrange the sureties immediately, although there is hardly any apparent relationship between the accused and the surety. The sureties are generally local people whereas the accused are either from upcountry or from the tribal areas. It is really sad to notice that in many cases they are reported to have died in the Jihad of Afghanistan. It is highly regrettable that the offenders of this category do not hesitate to exploit the noble institution of Jihad for their dishonest motives. The explanation offered invariably for their non-appearance, is their martyrdom in,the Afghanistan Jihad, consciously enough, when investigated have been found as incorrect, as in the present case. The orders of the subordinate trial Courts and the superior Courts in granting bail to the accused/appellants in cases of narcotics and smuggling are thus being misused. In fact, offering surety to such offenders has also become a regular business inasmuch as the accused-surety relationship is so well- arranged that the preconceived and pre-planned absconsion, on grant of bail, has become a regular feature. If the sureties are called for to deposit the bonds amount, they plead before the Court for showing leniency, which in the circumstances, amounts to an abuse of the process of the Court. This Court is, therefore, constrained to observe that the trial Courts as well as superior appellate Courts should be doubly conscious in matters of granting bail in narcotics cases. Even in matters of granting bail after a year has passed and the trial has not commenced, the trial Courts and for that matter the superior Courts also should adress themselves on the question whether there is likelihood of the absconsion of the accused if they are bailed out. The ruling consideration in granting bail in such cases should not merely be the expiry of one year or so, but also the possibility and chances of the abuse of the process of the Court and defeating the ends of justice.
In any case, it will be highly appreciable if the trials, in narcotics cases particularly, are concluded within a year which, generally speaking, is not difficult as almost all the prosecution witnesses come from official agencies, so that the chances of the accused going unpunished for being bailed out due to statutory delay and subsequently, absconding are left to be minimum.
9. For the foregoing reasosns the two bonds executed by the sureties namely, Abdul Baseer and Khuda-e-Nazar in the sum of Rs,50,000 each are forfeited. The amount to be deposited in the trial Court within one month from today failing which steps to be taken according to law.
10. Bail granted to the appellant is cancelled. Non-bailable warrants be issued against him through political Agent, Chaghi at Noshki, who will execute the same and produce the convict before the Sessions Judge, Quetta, who will send him to jail to serve out the remaining sentence.
11. Appeal to be fixed for regular hearing during the next Circuit at Quetta.